Opinion
No. CV 06-5005023-S
July 30, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #101
I FACTS
The plaintiff, Martin Conroy, also known as Conroy Electric, LLC, alleges the following facts in the one-count complaint which it filed against the defendant, Victor Dos Santos, on July 17, 2006. On September 14, 2005, the parties entered into a contract pursuant to which the plaintiff provided labor and services to install electrical wires and to excavate a pool at a residence. It is alleged that the defendant breached his duty under the contract by failing to pay the plaintiff $12,268.23 due under the contract.
On August 16, 2006, the defendant filed a motion to strike the complaint on the ground that it is legally insufficient because the contract between the parties does not meet the requirements of General Statutes § 20-429(a). Section 20-429 is a provision of the Home Improvement Act (HIA), General Statutes §§ 20-418 through 20-432. The defendant submitted a memorandum of law in support of the motion. On November 21, 2006, the plaintiff filed an objection to the motion to strike, with a memorandum of law in support thereof, as well as a motion to amend complaint, with an accompanying amended complaint. The amended complaint added the allegation that the plaintiff is an occupationally licensed electrical contractor. The motion to strike was argued at short calendar on May 21, 2007.
II DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) CT Page 13022 Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
In his memorandum of law in support of the motion to strike, the defendant argues that the complaint fails to state a cause of action because it does not meet the requirements of § 20-429(a). Specifically, the defendant contends that the complaint is deficient because the plaintiff did not either allege that the parties entered into a written contract or attach a copy of such a contract to the complaint.
The plaintiff counters that in its amended complaint, a legally sufficient claim has been made against the defendant because it clarifies therein that it is occupationally licensed, and General Statutes § 20-428, which is another provision of the HIA, exempts persons who have an occupational license from its requirements.
Practice Book § 10-60 offers a plaintiff the opportunity to amend a complaint. See also General Statutes § 52-128. Practice Book § 10-60 provides in relevant part: "(a) . . . [A] party may amend his or her pleadings . . . at any time subsequent to that stated in [Practice Book § 10-59] in the following manner: . . . (3) By filing a request for leave to file such amendment, with the amendment appended . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." (Emphasis added.) In the present case, the defendant did not object to the plaintiff's request to amend. Therefore, the amended complaint is deemed filed with the consent of the defendant, and it is the operative complaint.
Practice Book § 10-61 provides in relevant part: "If the adverse party fails to plead further [after any amended pleading], pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading." In the present case, the defendant did not make any further pleadings after the plaintiff filed his amended complaint. Therefore, the court applied the defendant's motion to strike to the amended complaint.
In the amended complaint, the plaintiff repeats the allegations of his original complaint and adds that it is "an occupationally licensed electrical contractor with license number 125725." It is undisputed that the term "home improvement" as used in the HIA includes the "construction, replacement, installation or improvement of . . . swimming pools." General Statutes § 20-419(4). It is also clear, however, that § 20-428 exempts various persons and organizations from the requirements of the Home Improvement Act. It provides in relevant part: "This chapter shall not apply to any of the following persons or organizations: . . . (4) any person holding a current professional or occupational license issued pursuant to the general statutes, provided such person engages only in that work for which he is licensed." General Statutes § 20-428. Electrical contractors fit into this exemption in that General Statutes § 20-334 requires them to obtain licenses in order to engage in their profession.
According to our courts, a special defense that a contract does not comply with the Home Improvement Act is without merit if the exemptions contained in § 20-428 apply. Biller Associates v. Peterken, 58 Conn.App. 8, 16, 751 A.2d 836 (2000) (affirming that "the plaintiff and its employees were licensed public adjusters engaged in adjusting and, therefore, were exempt from the [Home Improvement Act]"), rev'd in part on other grounds, 269 Conn. 716, 849 A.2d 847 (2004). Similarly, in a motion to discharge a mechanic's lien, a claim that an agreement is unenforceable under the Home Improvement Act is also without merit if the § 20-428 exemptions apply. See Santa Fuel, Inc. v. Varga, 77 Conn. App 474, 493-95, 823 A.2d 1249 (affirming trial court's ruling that employees with heating and plumbing licenses providing services within purview of such licenses fall within § 20-428(4) exemption), cert. denied, 265 Conn. 907, 831 A.2d 251 (2003).
The Superior Court considered § 20-428 in the context of a motion to strike in Sheridan v. Precious, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 000179241 (June 6, 2001, Adams, J.) ( 29 Conn. L. Rptr. 704, 704-05). The court ruled that the plaintiff's inferential allegations that he was a licensed interior decorator provide a basis to deny the defendants' motion to strike a complaint on the ground it did not comply with the proscriptions of the Home Improvement Act. Id.
In the present case, the sole basis for the defendant's motion to strike is that the complaint fails to allege facts that indicate that the parties' agreement complied with the requirements of the Home Improvement Act. In the amended complaint, however, the plaintiff alleges that it has an occupational license for at least some of the type of work he performed under the contract — electrical subcontracting. Because § 20-428(4) exempts those with such an occupational license from the requirements of the Home Improvement Act, the plaintiff does not need to allege that the contract meets the requirements of the Home Improvement Act, nor was he required to attach a copy of the Home Improvement Act. See Sheridan v. Precious, supra, 29 Conn. L. Rptr. 704-05.
If a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient." Kovacs v. Kasper, 41 Conn.Sup 225, 226, 565 A.2d 18 (1989).
III CONCLUSION
The motion to strike is denied for the reasons stated.